Federal Court Challenge to Massachusetts Eviction Moratorium Act Filed by Small Housing Providers

Issue July/August 2020 August 2020 By Jordana Roubicek Greenman
Real Estate Law Section Review
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Jordana Roubicek Greenman

The Eviction Moratorium Act is slated to expire on Oct. 17, 2020, at 11:59 p.m., after Gov. Charlie Baker extended the limitations on eviction proceedings by 60 days on July 21. United States District Court for the District of Boston Judge Mark Wolf is scheduled to hear a request for an injunction sometime in August in a lawsuit challenging the moratorium’s constitutionality.

Marie Baptiste, lead plaintiff in the federal court action, owns a rental property in Randolph. Baptiste, a nurse, allegedly is owed roughly $19,000 in back rent by her tenants, who have not communicated with her about the arrearage.

The eviction moratorium precludes Baptiste from sending the tenants a notice to quit or initiating eviction proceedings. Potentially compounding Baptiste’s woes, the Massachusetts Legislative Committee on Housing is expected to be referred two bills, SD. 2992, sponsored by Sen. Pat Jehlen (D-Somerville), and HD. 5166, sponsored by Rep. Mike Conolly (D-Cambridge) and Housing Committee Chair Kevin Honan (D-Brighton), both of which would further lengthen the eviction moratorium for 12 months from the date Gov. Baker lifts the state of emergency that he initially invoked on March 10.

Baptiste and co-plaintiff Mitchell Matorin are among thousands of small rental housing providers facing similar hardship in their struggle to remain solvent during the COVID-19 crisis.

The federal lawsuit, filed by the author and co-counsel Richard D. Vetstein, seeks to overturn and enjoin the moratorium as unconstitutional. Principally, counsel contend that the moratorium abridges plaintiffs’ constitutional rights to:

  1. petition the judiciary;
  2. free speech under the First Amendment;
  3. just compensation for an unlawful property taking under the Fifth Amendment; and
  4. the benefits of their leases under the Contracts Clause.

The moratorium eviscerates the right to evict, which is the core remedy for nonpayment of rent in residential leases. In his letter to the Legislature enlarging the moratorium by 60 days, Gov. Baker acknowledged that small landlords who depend on rent to pay their mortgages, real estate taxes and other expenses would be impacted by the eviction moratorium extension and “strongly encourage(d) tenants to continue to pay rent.” Unfortunately, although many renters have received government relief during the pandemic, property owners have largely been ignored.

An earlier lawsuit filed by the plaintiffs in Suffolk Superior Court is still pending, with a hearing scheduled for July 30.